MULKH RAJ Vs. STATE

JUDGEMENT

(1.) THIS miscellaneous first appeal against the order of the District Judge, Jammu, dated 6th March, 1973, which, on a request being made by Mr. R. N. Bhagotra counsel for the appellant, was treated by the Honâ„¢ble Chief Justice at the time of admission as a revision application, arises in the following circumstances : - The plaintiff is a school teacher who joined the Education Department of the State of Jammu and Kashmir in the year 2003 (Bikrami). According to him, he was born on 15 -7 -1978 (Bikrami) but erroneously his date of birth in the column of date of birth of his Service Book was recorded as 15 -7 -1973 (Bikrami). A dispute arose as to the date of birth of the petitioner and consequently the date of his superannuation in the Government service. He demanded that he may be declared to have been born on 15 -7 -1978 (Bikrami) which demand of his was repudiated by the Education Department on the ground that his date of birth, according to the Service Book, was 15 -7 -1973 (Bikrami). The plaintiff after serving a notice under Section 80 C.P.C., on the State of Jammu and Kashmir, instituted a suit for declaration in the Court of Sub -Judge (C.J.M.), Jammu, on 31st August, 1970 wherein he claimed a decree declaring his date of birth as 15 -7 -1978 instead of 15 -7 -1973 which stood recorded in the Service Book. The suit was resisted by the State through its Education Department on a number of grounds. Issues four in number were framed by the trial Court. The first two were of a preliminary nature and the last was regarding relief. Issue No. 3 which was the only issue in regard to the merits of the suit read as under : - Whether the date of birth of the plaintiff is 15 -7 -1978 and not 15 -7 -1973 (Bikrami)? If so what is its effect ?......O.P.P.

(2.) THE parties led evidence on the basis of which the Trial Court granted a decree to the petitioner declaring his date of birth as 15 -7 -1978. The State having felt aggrieved brought an appeal against the aforesaid judgment and decree to the District Judge, Jammu. Before the appeal could come up for hearing the State made an application before the District Judge, Jammu, on 2nd November, 1972 under Order 41 Rule 27 CPC in which it was submitted that Monthly Staff Statements for October, 1965, June 1965 and May 1965 in the handwriting of the plaintiff, Mulakh Raj had been traced out by the Education Department in which the plaintiff in his own hand mentioned his date of birth as 15 -7 -1973. It was stated in the application that the documents were not traceable earlier and so could not be produced before the trial court. The documents, according to the State were genuine and the production of the same was necessary to enable the Court to pronounce a judgment. The appeal then alongwith the application under Order 41 Rule 27 C.P.C. came up for hearing on 23rd December, 1972. On this date, in the course of hearing, when reference appears to have been made to the documents produced by the State alongwith the application aforementioned, it was discovered that in all the Monthly Staff Statements the date of birth of the plaintiff was tampered from "1973" to "1978". The attention of the Court was accordingly drawn to the tampering of the documents aforesaid whereupon the learned District Judge examined the Civil Clerk of the Court who had the custody of the file. The Civil clerk stated that the plaintiff, Mulkh Raj, had come to him alongwith some other gentlemen and asked for the file, whereupon he handed over the file to them. He further stated that the plaintiff, Mulkh Raj, and his companion took some notes from the file and the file was returned to him after half an hour. The District Judge vide his order dated 23rd December, 1972 directed an enquiry to be held in the matter by the Additional District Judge Jammu, with an intimation to the Secretary to the Honâ„¢ble Chief Justice and adjourned the case for filing objections by the plaintiff -respondent in that appeal to the application of the State for a reference to a handwriting expert. The case was adjourned to 15th of January, 1973 for hearing arguments in this application. On 15th of January, 1973 the learned District Judge was not present in the Court with the result that the case was adjourned to 25th of January 1973. On that date also the arguments could not be heard. The case was then adjourned to 7th February, 1973 on which date another application was filed by the State stating that some more Monthly Staff Statements for December, 1965, February 1963 and May 1963 had been traced out in which statements the date of birth of the plaintiff was mentioned as 15 -7 -1973 without any over -writing or interpolation. One of the statement was stated to have been prepare by the plaintiff himself in his own hand in which he himself had shown his date of birth as 15 -7 -1973. A prayer was made therefore before the District Judge that these statement may also be Admitted in evidence as there is no interpolation in them and as the production and the proof thereof would be extremely necessary to enable the Court to arrive at a just decision. Thereafter the arguments were heard and the application of the State seeking permission to produce the aforesaid documents under Order 41 Rule 27 C.P.C. was allowed, the judgment and the decree of the trial Court set -aside and the case was remanded to the trial court for recording fresh evidence. It is this judgment of the learned District Judge against which the present revision application as stated above has been filed before this court. The learned District Judge has considered the case -law on the subject and written a very well reasoned judgment. His finding is that the Monthly Staff Statements sought to be produced in appeal are very important and result of the appeal would also hing thereupon.

(3.) THE view taken by the District Judge in admitting the documents under Order 41 Rule 27 C.P.C. has been assailed by Mr. Harbans Lal Bhagotra, counsel for the petitioner. He has argued before me that the District Judge committed a material irregularity in allowing the respondent to produce and prove the documents aforesaid. According to him a party to the cause cannot be allowed to improve its case, remove lacuna and fill up the gaps in its evidence, before the Appellate Court after it has failed in the trial court.